United States Court of Appeals
For the First Circuit
No. 15-1898
UNITED STATES OF AMERICA,
Appellee,
v.
RAYMOND NEGRÓN,
Defendant, Appellant.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEW HAMPSHIRE
[Hon. Joseph A. DiClerico, U.S. District Judge]
Before
Torruella, Lynch, and Barron,
Circuit Judges.
Bruce E. Kenna, on brief for appellant.
Seth R. Aframe, Assistant United States Attorney, and Emily
Gray Rice, United States Attorney, on brief for appellee.
September 14, 2016
TORRUELLA, Circuit Judge. Defendant-Appellant Raymond
Negrón appeals the United States District Court for the District
of New Hampshire's decision to deny a retroactive reduction to his
sentence pursuant to 18 U.S.C. § 3582(c)(2). Negrón had
previously entered into plea agreement pursuant to Federal Rule of
Criminal Procedure 11(c)(1)(C), which "bind[s] the district court
to a pre-agreed sentence if the court accepts the plea." United
States v. Rivera-Martínez, 665 F.3d 344, 345 (1st Cir. 2011).
Under so-called C-type plea agreements, a defendant is eligible
for a sentence reduction based on a retroactive amendment to the
United States Sentencing Guidelines ("Guidelines") only if the
term of imprisonment specified in the agreement is "based on" a
Guidelines sentencing range. We agree with the district court
that the proposed sentenced in Negrón's plea agreement failed to
meet this requirement and affirm.
I.
On August 22, 2012, a federal grand jury returned a nine-
count indictment against Negrón. 1 Negrón and the Government
1 Counts one through five charged Negrón with controlled substance
offenses in violation of 21 U.S.C. § 841(a)(1). Count six charged
Negrón with sale of a firearm to a prohibited person in violation
of 18 U.S.C. § 922(d). Counts seven through nine related to
Negrón's possession of a Mossberg twenty gauge bolt action shotgun.
Negrón was charged with possession of an unregistered firearm, 26
U.S.C. §§ 5861(d), 5841, 5871; possession of a firearm with an
obliterated serial number, 18 U.S.C. § 922(k); and possession of
a short-barreled shotgun during and in relation to a drug
-2-
subsequently reached a plea agreement in which Negrón pled guilty
to counts one through eight. The Government dismissed count nine,
which carried a mandatory minimum consecutive sentence of 120
months' imprisonment. See 18 U.S.C. § 924(c)(1)(B)(i). Negrón's
plea agreement was made pursuant to Federal Rule of Criminal
Procedure 11(c)(1)(C). Under so-called C-type plea agreements,
"the parties bind the district court to a pre-agreed sentence if
the court accepts the plea." Rivera-Martínez, 665 F.3d at 345.
Although the plea agreement did not state a base level offense,
applicable Guidelines range, or criminal history category ("CHC"),
the parties stipulated that Negrón would be sentenced to 144
months' imprisonment.
The district court conducted a sentencing hearing on
June 13, 2013, and determined that Negrón had a total base offense
level of 25 and CHC of I, corresponding to a Guidelines range
sentence of 57 to 71 months' imprisonment. Noting that the
stipulated sentence was "slightly over twice the high end of the
advisory guideline," the district court accepted the plea
agreement and imposed the stipulated sentence.
In 2014, the United States Sentencing Commission
retroactively reduced the base offense level for many drug offenses
trafficking crime, 18 U.S.C. § 924(c)(1)(B)(i).
-3-
by two levels. See U.S.S.G. § 1B1.10(a)(1); U.S.S.G. supplement
to app. C amend. 782 (Nov. 1, 2014); United States v. Vaughn, 806
F.3d 640, 643 (1st Cir. 2015). Because several of his convictions
were for controlled substance offenses, Negrón subsequently filed
a motion to modify his sentence pursuant to 18 U.S.C. § 3582(c)(2).
The district court denied Negrón's motion, concluding that
Negrón's sentence was not based on a Guidelines sentencing range
affected by an amendment. This timely appeal followed.
II.
A district court performs a "two-step inquiry" in
determining whether a defendant is entitled to a sentence reduction
under § 3582(c)(2). Dillon v. United States, 560 U.S. 817, 826
(2010). First, the district court must determine whether any
applicable Guidelines amendments apply to the defendant's
sentence. Id. at 826-27. Second, if the district court concludes
the defendant is eligible for relief, it must weigh the sentencing
factors described in 18 U.S.C. § 3553(a) and determine whether a
reduction is warranted. Id. Here, the sole issue on appeal is
whether the district court properly applied our decision in Rivera-
Martínez, 665 F.3d at 344, to conclude that Negrón was ineligible
for relief.2 Although "[w]e review a district court's denial of
2 The district court stated that, if Negrón were legally eligible,
it would have reduced his sentence to 116 months' imprisonment.
-4-
a motion for reduction of sentence under section 3582(c)(2) for
abuse of discretion," United States v. Caraballo, 552 F.3d 6, 8
(1st Cir. 2008), because Negrón contends the district court
committed legal error, our review is effectively de novo, id. ("A
material error of law is perforce an abuse of discretion.").
Courts may reduce the term of imprisonment for "a
defendant who has been sentenced to a term of imprisonment based
on a sentencing range that has subsequently been lowered by the
Sentencing Commission." 18 U.S.C. § 3582(c)(2). The term of
imprisonment in a C-type plea agreement is "based on" a Guidelines
sentencing range in two scenarios: (1) when the agreement "calls
for a sentence within an identified sentencing range," Rivera-
Martínez, 665 F.3d at 348, and (2) when "the terms contained within
the four corners of the plea agreement," id. at 349, "make clear
that the basis for a specified term of imprisonment is a Guidelines
sentencing range applicable to the offense to which the defendant
pleaded guilty," id. at 348 (alterations omitted) (quoting Freeman
v. United States, 564 U.S. 522, 539 (2011) (Sotomayor, J.,
concurring)).3
3 We acknowledge that since we decided Rivera-Martínez, two other
circuits have concluded that Justice Sotomayor's concurrence is
not the narrowest opinion in Freeman v. United States and thus
nonbinding. See United States v. Davis, __ F.3d __, 2016 WL
324504316 (9th Cir. June 13, 2016) (en banc); United States v.
Epps, 707 F.3d 337 (D.C. Cir. 2013). Nonetheless, we view Rivera-
-5-
Negrón acknowledges his term of imprisonment is not
within a specific Guidelines sentencing range, but argues that his
plea agreement fell into this second category. As in Rivera-
Martínez, however, Negrón's plea agreement lacks the "two
essential coordinates" that show a Guidelines sentencing range
underpins the proposed sentence. Id. at 349. In that case, we
found that a C-type plea agreement that failed to specify a CHC
(despite specifying a base offense level) could not be considered
to be based on a Guidelines sentencing range. Id. Negrón's case
is even weaker because his plea agreement contains neither a base
offense level nor a CHC. Absent either of these two essential
coordinates, we cannot conclude Negrón's plea agreement was based
on a Guidelines sentencing range. Id.
Nonetheless, Negrón contends that we can infer both
numbers from the four corners of his plea agreement. With respect
to the base offense level, Negrón argues his plea agreement
contains all of the facts necessary to calculate this integer.
With respect to his CHC, Negrón claims this number was never
seriously contested, due to his relatively sparse criminal record,
and is obvious from his presentence report. Finally, Negrón cites
the fact that at his sentencing hearing the district court
Martínez as controlling Negrón's appeal.
-6-
acknowledged that 144 months' imprisonment was equal to doubling
the high end of the applicable Guidelines range and "rounding [up
to] an even twelve-year sentence." Negrón views this statement
as evidence that his plea agreement was based on a Guidelines
sentencing range.
Negrón's arguments run contrary to our holding in
Rivera-Martínez. Under the Guidelines, a district court may
accept a C-type plea agreement only if the agreement stipulates a
sentence that is within the applicable Guidelines range or the
district court is satisfied that the sentence departs from the
Guidelines range "for justifiable reasons." U.S.S.G. § 6B1.2(c).
In other words, even with C-type plea agreements, the district
court must calculate the defendant's base offense level and CHC to
determine whether the sentence negotiated by the parties is
acceptable. Because we have rejected the view that all C-type
plea agreements may qualify for relief under § 3582(c)(2), we have
held that the fact that the district court "perform[ed] [Guidelines
calculations] before deciding whether to accept the agreement" is
insufficient to show that the stipulated sentence is based on a
Guidelines sentencing range. Rivera-Martínez, 665 F.3d at 349.
The inclusion of admitted facts in Negrón's plea
agreement does not necessarily demonstrate that that parties
intended to base his sentence on a particular base offense level.
-7-
Rather, these facts merely helped the district court perform the
Guidelines analysis necessary to its review of the agreement.
Moreover, a sentencing court need not rely exclusively on the facts
listed in a plea agreement when performing its Guidelines
calculation to determine whether to accept the plea. The district
court and Negrón both relied on his presentence report -- a
document outside of the four corners of the plea agreement -- to
calculate his CHC. We therefore reject Negrón's contention that
we can infer that he and the Government had a specific base offense
level in mind from the stipulated facts in his plea agreement.
We also decline Negrón's invitation to find that his
plea agreement implicitly referenced his CHC. Although the
"obviousness" of this integer may be an explanation for its absence
from the plea agreement, it is not the only one. The absence of
the CHC is equally consistent with the parties simply viewing other
factors besides Negrón's Guidelines range as important to
determining his sentence.
For similar reasons, we are equally unpersuaded by
Negrón's argument that his plea agreement must have been based on
a Guidelines sentencing range because his stipulated sentence is
roughly double the high end of the Guidelines sentencing range.
We have recognized that the "term of imprisonment in a C-type plea
agreement will most often be negotiated by reference to the
-8-
relevant guideline provisions" and interpreted § 3582(c)(2) as
requiring a stronger "linkage." Id. (citing Freeman, 564 U.S. at
537). Negrón's observation falls short. Although the district
court acknowledged some relationship between the stipulated
sentence and the applicable Guidelines range, the district court
also factored into its analysis the fact that the Government had
agreed to dismiss count nine of Negrón's indictment, which carried
a mandatory minimum consecutive sentence of 120 months'
imprisonment. In other words, non-Guidelines factors also
explained Negrón's proposed sentence. Understanding the role the
Guidelines played vis-á-vis the dropped charge would require us to
"to supplement the [a]greement with . . . the parties' background
negotiations," something Rivera-Martínez forbids. Id. We
therefore decline to accept Negrón's invitation to infer a
Guidelines basis for his stipulated sentence.
Finally, Negrón claims his stipulated sentence was based
on a Guidelines sentencing range because his plea agreement
contains various references to the Guidelines including that
(1) the district court was required to consider the Guidelines in
an advisory capacity; (2) Negrón was aware that the Guidelines
were nonbinding; (3) the United States and the United States
Probation Office would advise the court of any inaccuracies in the
presentence report; and (4) the Government would not "oppose an
-9-
appropriate reduction in [Negrón's] adjusted offense level, under
the advisory Sentencing Guidelines, based upon [Negrón's] prompt
recognition and affirmative acceptance of personal responsibility
for the offense." These generic plea agreement statements are
insufficient to show that Negrón's term of imprisonment was based
on a Guidelines sentencing range because it is not "evident from
the agreement itself" that the "basis for the specified term [of
imprisonment] is a Guidelines sentencing range." Freeman, 564
U.S. at 539 (Sotomayor, J., concurring). They simply show that
the Guidelines would play some amorphous role in the parties'
negotiations and the district court's analysis of the plea. This
falls short of the linkage Rivera-Martínez requires.
III.
Because we cannot conclude that Negrón's sentence was
based on a Guidelines sentencing range, we agree with the district
court that he is not eligible for a sentencing reduction pursuant
to § 3582(c)(2).
Affirmed.
-10-